Author Archives: Sheila

A Constitutional Crisis

A few days ago, I participated in an Indiana Lawyer podcast investigating the question “Is America experiencing a Constitutional Crisis?”

Unfortunately, I was paired with Jim Bopp on the recording, which was a test of my ability to keep my cool. Bopp, for those of you who don’t know, was the lawyer who brought us Citizen United, and he’s never met a ‘librul’ who was right about anything. He also apparently resides in an alternate reality, where every lower court judge who’s ruled against Trump is a far-left liberal appointed by a Democrat, Trump’s daily insane Executive Orders are merely an example of the way past Presidents have tried to “push the envelope,” and voting by mail is an invitation to ballot theft…

There was more, but the stiff drink I imbibed when I got home helped.

When I got the call requesting that I participate in the podcast, I was told the questions would revolve around whether the country is currently experiencing a constitutional crisis. I think the answer is yes.

Of course, whether we are currently experiencing such a crisis depends upon your preferred definition. One line of thinking defines a Constitutional Crisis as a situation in which a President defies a clear mandate by the Surpreme Court. I think that is far too restrictive a definition; instead, I would argue that the loss of a fundamental basis of constitutional functioning qualifies–and I think it is beyond argument that we are witnessing such a loss.

America’s constitutional structure is based upon the Separation of Powers. The Founders who crafted the Constitution were greatly influenced by Enlightenment philosophy, especially the philosophy of Baron de Montesquieu, who wrote The Spirit of Laws. Montesquieu argued that, in order for liberty to thrive, government authority must be divided into three distinct branches—legislative, executive, and judicial—each with independent powers and responsibilities. That division, he argued, would prevent the concentration of power leading to autocracy, and would provide a system of checks and balances.

The Founders embraced that structure, expecting that each branch–jealous of its prerogatives–would check excesses attempted by the others. Despite some unfortunate missteps, It has basically worked that way.

Until now.

One after another, Trump’s Executive Orders have claimed authority that the Constitution explicitly gives to the other branches–primarily, Congress. (Interestingly, the Founders conceived of Congress as the “first among equals”–the legislative branch, in their conception, would be the branch exercising the greatest authority.) These attempts would not, in themselves, constitute a constitutional crisis–the crisis comes from the cowardly, arguably treasonous refusal of the Republicans who dominate the legislative branch to assert their constitutional prerogatives. And that crisis has been amplified–shamefully–by the Supreme Court. Despite the valiant efforts of the lower federal courts to constrain Trump, our rogue Supreme Court has used its Shadow Docket to summarily overturn the considered and thoughtful decisions of Judges who–contrary to Jim Bopp’s fond misconceptions–were nominated by Presidents of both parties, and include judges named by Trump. That rogue Court has weakened the rule of law by failing to follow its own precedents and by distorting settled constitutional jurisprudence.

The one observation by Bopp with which I agreed  was his statement that personnel reflects policy. Any reasonable evaluation of the clowns, drunkards, conspiracy theorists and assorted grifters installed by Trump will reflect the utter lack of policy–not to mention competence– that permeates this administration. (Corruption and grifting aren’t policy.)

If we aren’t having a constitutional crisis, I don’t know what one would look like…

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An Insider Analysis

Some of the most distressed observers of our national plunge into the very unAmerican, neo-fascist nightmare we’re experiencing are the political strategists who spent years working to elect Republicans. A number of them are now “Never Trumpers” who are wrestling with hard questions: how much of GOP rhetoric was simply PR? What was it in the GOP incentive structure that took the party down this disastrous path? What were the danger signals they failed to see?

One of those Never Trumpers is Stuart Stevens, and a while back, he wrote an essay in the Bulwark in which he tried to trace how the “law and order party had become the party of Jeffrey Epstein.” As he began,

Let me begin with a question that a lot of us are asking ourselves. How did we get here? How is it that right now, as we speak, there are American citizens that haven’t been charged with a crime, much less convicted, sitting in a concentration camp in Florida while one of the most notorious, evil, child sex traffickers of our time has cut some sweetheart deal so that she has been transferred from a prison in Florida to a Club Fed in Texas?

Stevens noted that Maxwell’s transfer violated clear Prison Bureau guidelines, and questioned how America had gotten to so lawless a place. “How did it happen? Well, the easy answer is that we elected Donald Trump. But that’s really a cop-out because it’s not just Donald Trump.”

When Trump first started to dominate the Republican Party, many of my Bush-era Republican friends talked about how Donald Trump had hijacked our party. This never made sense to me. The hijacker on the plane is not popular with the passengers. No one is thanking the hijacker for the chance to go to Cuba instead of grandma’s house. But Donald Trump quickly became the most popular figure in the Republican Party by a wide margin.

That, of course, is the question all sane Americans are constantly asking ourselves–especially those (like yours truly) who spent years in the Republican Party, assuming that the party’s political rhetoric accurately reflected its political and philosophical beliefs. As Stevens glumly concludes, “Trump didn’t hijack the Party, he revealed it.”

It’s hard to disagree with that conclusion; as Stevens writes, “People don’t abandon deeply held beliefs in a matter of months… What the party called ‘bedrock principles’ turned out to be nothing more than marketing slogans.”

As Stevens probes the reason for the GOP’s enthusiastic embrace of Trump, he comes to the same conclusion I did. It all goes back to America’s original sin: racism.  He points to the telling homogeneity of today’s Republican Party.

Race is the original sin of the modern Republican Party. This isn’t new to the Trump era. In 1956, Eisenhower got 39% of the Black vote. In 1964, Barry Goldwater opposed the Civil Rights Act and received 7% of the Black vote. In 2020, Trump got 12% of the Black vote, a number he improved to 13% in 2024. That’s a six-point increase in 60 years.

In the Bush 43 years, in what seems like a long time ago in a galaxy far away, the party admitted it had failed to attract Black voters and took responsibility for the failure. In 2005, the Chairman of the Republican Party, Ken Melman, gave a speech at the NAACP convention apologizing for the Southern Strategy, which leveraged white racist anger to maximize Republican votes. Does it mean anything that you apologized? I think it does. It’s an acknowledgement that what had happened is wrong and that the party had to endeavor to earn more Black support.

That all ended in 2016 with Donald Trump’s openly racist campaign.

Today’s parties have sorted themselves into White Nationalists versus everyone else.

As Stevens notes, the homogeneity of the Republican Party makes it much easier to message to core voters than it is to message to the far more diverse Democratic Party. And Stevens ties that observation to the fecklessness of Congressional Republicans, pointing out that a “party that spends 60 years relying on candidates who can win by maximizing white voters inevitably draws a different kind of candidate than a party that requires appealing to a more diverse electorate.” That observation goes a long way toward explaining the current Republican politicians who exhibit “a North Korean-style supplication to their leader.”

It’s hard to discount Stevens’ “insider analysis.”

His essay answers the persistent question–why on earth would anyone vote for a pathetic, delusional ignoramus in possession of not a single redeeming human quality? That answer is depressingly simple. For far too many voters, primal hatreds overcome humanity and rational self-interest.

But who knew there were so many of them?

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The Scalpel Versus The Blunderbuss

Every day, we see another headline reporting another example of Trump’s continuing–and often random– assault on federal governance and scientific expertise. A recent example, and not even one of the most consequential, was a decision scrapping satellite observations of Earth. Administration officials decided that those satellites “go beyond the essential task of predicting the weather.” In Trumpworld, only weather forecasts warrant government investment — not instruments that monitor climate, and–horrors!– might confirm the reality of climate change.

As the Washington Post reported,

Language in a National Oceanic and Atmospheric Administration budget calls for preserving funding for the National Weather Service while slashing anything tied to climate change, limiting government investment to “research that is more directly related to the NOAA mission.” It echoed a call in the Republican policy playbook Project 2025 to dismantle climate research, which the report said drives “the climate change alarm industry,” while continuing to improve weather forecasting accuracy.

But scientists said there is no such division between weather and climate — and that losing climate data will actually hurt weather forecasting.

The article explains the fallacy at the root of this particular decision, but it is representative of the incompetence–and increasing insanity– of the entire administration.  It’s just one example of what happens when decisions about governance are dictated by ideology rather than science or evidence. (Then, of course, there are the decisions that simply reflect Trump’s pique and uninformed tantrums…)

I count myself among the many critics who can point to areas of American government clearly requiring reform and reconsideration. But as any rational adult understands–and as the damage inflicted by Elon Musk and his band of DOGE children amply demonstrated– effective reform is considerably different from uninformed destruction.

It’s the difference between the scalpel and the blunderbuss.

Thoughtful reform begins with basic questions: is this activity a proper function of government, or might it better be left to the private sector? If it is something that we should expect government to do, should it be done “in house,” by public servants, or is it something that should be contracted out while being monitored by government? if the latter, does government have the capacity and resources to do that monitoring?

Once we have answered those questions, and decided that–yes, this is an activity that is appropriately governmental–the exercise moves to the next step. What is this activity accomplishing? How well is it performing? If we discontinue or materially change it, what are the likely consequences? Are those consequences acceptable?

Answering such questions requires–at a minimum–an understanding of what the activity entails, the reasons it is being conducted, the reason government is doing it, the identity of businesses and citizens who rely upon it, and the consequences to them and the public of altering or discontinuing it. Once in possession of that information, a cost/benefit analysis can be conducted and a considered decision can be made.

Forgive me for belaboring the obvious, but this process bears absolutely no relationship to the wholesale blunderbuss being taken to our governing structures by the uninformed, incompetent buffoons and cranks who occupy positions of authority in the current administration. As the linked article concludes,

Satellite data might prove impossible to replace once cut off, scientists said.

More than ever, accurate weather prediction depends on climate science, said Riishojgaard, whose center works with government satellite agencies on data algorithms. Meteorology and climate science depend on the same data, and to a large extent, the same computer models, which are informed by a record of satellite data that now goes back nearly 50 years, he said.

“You now cannot do weather prediction without understanding the climate,” Riishojgaard said. “If you ignore the past, it’s like you’re looking out the window in the morning and saying, ‘What’s going to happen?’”

What, indeed?

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FloraDUH Again

Following in RFK, Jr.’s demented footsteps, Florida Surgeon General Joseph Ladapo has announced that the state will no longer require any vaccinations. That includes the longstanding requirements that children entering public school classrooms receive inoculations that have long been required to protect themselves and–importantly– their classmates. 

Ladapo also acknowledged that his team had not conducted any studies on the effects of removing state vaccine mandates, because, he claimed, it is an “issue of right and wrong in terms of whether parents should be able to control, have ultimate authority over what happens to their kids’ bodies.”

I will leave it to medical experts (a category that clearly does not include either RFK, Jr. or Ladapo) to explain the likely real-world consequences of this insane decision to reject decades of scientific and medical evidence. But I do want to point to a statement by Ladapo illustrating that his ignorance of the law and constitution are equal–if not superior–to his disdain for history and medical science.

A number of media reports have included Ladapo’s statement that government has no right to dictate to citizens what they should put in their bodies. He actually said “You have sovereignty over your body.”

If your first reaction to that rather astonishing claim was something to the effect of “then how can government force women to give birth? If women have sovereignty over their bodies, abortion bans are clearly illegal” you’d have a lot of company. 

But that incredible hypocrisy isn’t even the worst of it.

If government didn’t have the right to require certain behaviors, including health measures, there would be no reason to appoint Surgeon Generals. The proper question is: when and under what circumstances does government have the right to mandate such behaviors–and the answer to that requires a basic understanding of the underlying libertarian premise of America’s constitution, which does indeed accord sovereignty over an individual’s decisions to that individual until and unless those decisions harm people who have not consented to that harm.

Remember smallpox? As far back as 1777, George Washington faced a smallpox epidemic that was devastating his army, and he ordered the compulsory variolation (the forerunner of vaccinations) of all his troops. Washington’s edict is considered the first mass immunization policy in American history, but it certainly wasn’t the last. In 1813, President James Madison signed “An Act to Encourage Vaccination,” which established the United States Vaccine Agency and allowed free postal delivery of vaccine materials. And in 1905, the Supreme Court affirmed states’ authority to pass and enforce compulsory vaccination laws “for the common welfare” in Jacobson v. Massachusetts. 

The U.S. Constitution allows us to destroy our own bodies by indulging in unhealthy habits, or refusing medical care. It does not allow us to endanger our fellow citizens. Despite the selfish complaints of people who didn’t want to abide by masking rules during the pandemic, our legal system does not permit us to wilfully engage in behaviors that are highly likely to endanger others. The issue is not whether we retain complete authority over our bodies, no matter what the circumstances. That question has been answered–we don’t. The correct question is: under what circumstances can the government require us to take measures that protect other members of the public?

If FloraDUH goes through with this truly insane measure, it is likely to accelerate the state’s already-substantial exodus of educated citizens–an exodus initiated by Governor DeSantis’ assault on higher education. It’s also likely to put a significant dent in the tourism that supports FloriDUH’s economy. (I certainly wouldn’t take children or grandchildren to a Disneyland where they are likely to mingle with unvaccinated Florida natives.)

I can see the tourism slogans now. “Come to Florida, where the sun doesn’t shine on rainbow crosswalks, where our universities are staffed only with instructors who can’t find jobs elsewhere, and where our unvaccinated children infect both other children and medically-vulnerable oldsters.”

FloriDUh–a perfect example of a Red state.

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Put This On Your Calendar

October 18th. Put it on your calendar.

That’s the day that Indivisible and its partner organizations will mount a second “No Kings” day. As the email announcing that event reminded us, organizing a national day of action with millions of people takes time and resources– recruitment tools, map of events, supplies and resources for local protests and anchor events, so the advance notice is intended to allow for fundraising and the other tasks that ensure a successful turnout.

Speaking of turnout–the incredible number who participated in the first No Kings Day was the result of such careful organizing, and the goal is to build on that success–to ensure that the millions of Americans who are deeply opposed to the ongoing destruction of America’s government and our constitutional culture have a vehicle to send a powerful message, not just to the nation’s corrupt and incompetent MAGA administration, but to their cowardly enablers in the House and Senate.

In the announcement of the second No Kings Day, the email from Indivisible reported “round the clock coordination with our No Kings partners” and the intent “to make the next No Kings one of the largest days of protest in US history.”

I have posted previously about academic studies documenting peaceful protests by only 3.5% of a country’s population that have defeated other autocratic takeovers. That percentage would translate to some eleven million Americans–an enormous but doable number.

I frequently hear people minimize the effectiveness of taking to the streets in this fashion. Certainly, if nothing else is going on–if the resistance is limited to expressions of displeasure–that effectiveness will be limited. But that isn’t the case in today’s America. Literally hundreds of lawsuits have been filed against the administration’s illegal and unlawful actions, and–at least at the lower court level–over 80% of them have been successful. I’ve previously noted the multiple efforts being mounted by Blue state Attorneys General and governors.

There are also the numerous, less well-organized and promoted protests that have erupted more or less spontaneously around the country. Citizens have developed on-line systems identifying ICE movements, to assist immigrants in evading capture; small (but not insignificant) groups of protestors have gathered in response to other illegal and unconstitutional incursions. Social media is filled with advice for resistors (granted, not always helpful)–not to mention reports of lesser-known activities protesting our would-be King.

The great virtue of a massive protest of the sort being planned for October 18th is the message it sends, especially but not exclusively to the Republican elected officials who have refused to hold town halls or otherwise interact with angry constituents.  But we should not minimize the extent to which participation in such events also has a number of “spin-off” merits. As someone who participated in the first No Kings protest, I can personally attest to experiencing very welcome feelings of solidarity. Interacting with so many other people who clearly shared my concerns, encountering friends I might not have expected to see at such an event, reading the multiple (often very clever) signs–acted like a shot of adrenalin.

When an individual citizen gets up each morning and is immediately assaulted by emails, newsletters and media “breaking news” items detailing the most recent horrific, bigoted and unconstitutional actions taken by the Trump administration, demoralization can–and often does–set in. Gathering with others who share one’s determination not to surrender is a powerful antidote.

In any event, put October 18th on your calendar. Buy some poster-board, and maybe a t-shirt with an appropriately aggressive slogan. Sign up with Indivisible to indicate your intent to participate, and tell your friends and family members.

Let’s see if we can get eleven million people to send a message…

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